Alamdar v MIMA

[2001] FCA 1244

FEDERAL COURT OF AUSTRALIA

Alamdar v Minister for Immigration & Multicultural Affairs [2001] FCA 1244

MOHAMMAD JARAD ALAMDAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 49 OF 2001

EMMETT J
30 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 49 OF 2001

BETWEEN:	MOHAMMAD JARAD ALAMDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 JULY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

1.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 49 OF 2001

BETWEEN:	MOHAMMAD JARAD ALAMDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	30 JULY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran.  He arrived in Australia in November 2000 and applied for a Protection (Class XA) visa on 11 November 2000.  On 11 December 2000 a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), the respondent to the present proceeding, decided to refuse the application for a protection visa.  An application for review by the Refugee Review Tribunal (“the Tribunal”) was lodged on 18 December 2000.  On 13 February 2001 the Tribunal affirmed the decision not to grant a protection visa.  By application filed on 23 February 2001 the applicant now seeks an order of review by this Court of the decision of the Tribunal.

2. The applicant was interviewed shortly after his arrival in Australia because he did not have a passport.  He claimed that he had travelled to Australia via Dubai and Malaysia and Indonesia and said that he had used a false Turkish passport that he had obtained in Dubai.  When asked why he had left Iran, the applicant said that he and a group of friends had begun making pornographic films about seven months ago.  He said that he had acted in one of the films and his face was identifiable.  He had been paid the equivalent of about $1,200.00 per film.  He said that in early August 2000 the police had arrested one of the people involved in making the films and had seized video equipment, photographs and editing equipment.

3. In a submission made on behalf of the applicant by his representatives it was argued that, although actors involved in making pornographic films might not constitute a particular social group in Iran for the purpose of the 1951 Convention Relating to the Status of Refugees, as amended by the Refugee Protocol (“the Convention”), those involved in the arts in a more general sense did so.  The submission was made that the applicant had a well-founded fear of being persecuted by reason of his membership of the particular social group of artists.

4. The applicant claimed that the Islamic government in Iran had destroyed the economy and that young people were taking refuge in alcohol and opium.  He asserted that the Iranian regime was a terrorist regime and did not respect human rights.  However, he said that his main reason for being involved in making pornographic films had been the money.  He said that, because what he had done was opposed to the regime’s ideas, they would say that he had been trying to distribute Western culture.  He claimed that he would not be found guilty only for sexual matters but also because he was fighting with the regime on the basis that he did not want to obey their commands and their artificial laws.

5. The Tribunal accepted that the applicant was involved as an actor in two pornographic films in Iran and that he was also involved in procuring women for the pornographic films and for the purposes of prostitution.  The Tribunal accepted also that the creation, duplication and distribution of pornographic films are offences that carry the death penalty in Iran.  The applicant asserted that he would be stoned to death if he returned to Iran.  However, the Australian Department of Foreign Affairs and Trade had advised that it was unlikely that anyone would be stoned to death in Iran upon return from Australia unless they became a public “cause celebre” for being a Bahai, an Israeli spy, MKO agent or some other perceived security or religious risk.

6. The Tribunal did not accept the fact that the applicant fears that he will be punished if he returns to Iran by reason of his involvement in making pornographic films is enough in itself to bring him within the terms of the definition of a refugee within the Convention.  The Tribunal referred to the principle that the enforcement of a law of general application is not, without more, persecution for a Convention reason.  The Tribunal accepted that that would be so even if the punishment for the breach of the law is harsh or even repugnant to the fundamental values of Australian society and the international community.

7. The Tribunal observed that a country such as Iran may have laws of general application, which punish severely, perhaps even with the death penalty, conduct that would not be criminal in Australia.  The Tribunal considered that the enforcement of such laws may amount to persecution, but without more it would not constitute persecution for one of the five Convention reasons.  The Tribunal referred to the claim made on behalf of the applicant that he belonged to a particular social group for the purpose of the Convention.  The group was defined as “artists”.  The Tribunal observed, however, that there was no evidence before it to indicate that artists form a cognisable group in Iranian society and so a particular social group for the purposes of the Convention.

8. It is not enough that a person be a member of a particular social group.  The person must fear persecution for reasons of membership or perceived membership of the particular social group.  The Tribunal did not consider that, if the applicant were to return to Iran, he would be singled out by reason of his membership of a particular social group, such as artists, but by reason of his particular acts in making pornographic films.  The Tribunal considered that the fact that Iran is an Islamic state and that certain of its laws reflect Islamic morality does not, in itself, mean that the enforcement of such laws amounts to persecution by reason of political opinion or religion. 

9. The Tribunal did not accept, on the evidence before it, that the applicant would be punished more harshly than any other person accused with involvement in making pornographic films by reason of any religious or political opinion imputed to him on the basis of his involvement in making pornographic films.  The Tribunal accepted that the applicant left Iran illegally because he faced punishment by the Iranian authorities for his involvement in making pornographic films.  Since his illegal exit was prompted by a desire to evade justice, he may face a prison sentence for his illegal departure, in addition to the penalty he faces if convicted for his involvement in making pornographic films.  However, the Tribunal considered that that would be the product of non-discriminatory enforcement of a law of general application and without more would not amount to persecution for the purposes of the Convention.

10. The Tribunal found that there was nothing before it to suggest that those Iranians who have departed the country illegally in order to evade justice form a cognisable group in Iranian society and so a particular social group for the purpose of the Convention.  The Tribunal also had information from the Australia Department of Foreign Affairs and Trade that the act of applying for asylum abroad was not in itself an offence in Iran.  The information indicated that, at worst, knowledge that an individual had sought political asylum would not result in much more than verbal harassment, unless the asylum seeker had a high opposition political profile.  The Tribunal did not accept, on the evidence before it, that if the applicant returns to Iran now or in the reasonably foreseeable future, he will be treated differently from any other Iranian who has sought asylum abroad.  It did not consider that any religious or political opinion would be imputed to him on the basis of his involvement in making pornographic films.

11. The application to this Court disclosed two grounds of review. However, only one was pressed at the hearing, namely, that based on s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”). The ground in the application is as follows:

    “The decision involved an error of law, being an error of law involving the incorrect interpretation of the law to the facts as found by the Tribunal or both.”

    The terms of s 476(1)(e) are as follows:

    “(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

12. The ground in the application appears to involve a telescoping of the two limbs of paragraph (e).  As I understood the argument advanced on behalf of the applicant by his counsel, it was that there was an error within the meaning of the second limb, namely, that there was incorrect application of the law to the facts as found by the Tribunal.  In any event, I shall deal with the submissions on the basis that either limb of paragraph (e) would have been available had the grounds been established. 

13. The argument put to me appears to have been slightly different from that advanced to the Tribunal.  The Tribunal, as I have said, noted that the argument was based on an assertion that the applicant was a member of a particular social group, being “artists”.  However, it was put by counsel for the applicant that the particular social group was those who were involved in the making of pornographic films or possibly those who acted in pornographic films. 

14. The difficulty for the applicant, as was frankly acknowledged by his counsel, is that there is simply no finding by the Tribunal that any particular collection of individuals was a group that is set apart from the rest of the community in a way that was recognised by the community in Iran.  There was no evidence before the Tribunal and certainly no finding to that effect.  It was suggested on behalf of the applicant that it was relevant that the applicant’s unwillingness to observe Iranian laws had some foundation in the fact that Iran is now a religious state.  Conduct in which a person engages in giving effect to his faith in the supernatural may be religious.  However, it is excluded from the area of legal immunity marked out by the concept of religion, if it offends against the ordinary laws, that is, if it offends against laws which do not discriminate against religion generally or against particular religions, or against conduct of a kind which is characteristic only of a religion – see Church of The New Faith v The Commissioner of Payroll Tax (1983) 154 CLR 120 at 135-6.

15. The Tribunal found that the applicant’s conduct did not involve the exercise of religious beliefs.  Rather, it accepted, in effect, that the motivation of the applicant was money.  Counsel expressly eschewed any reliance on the proposition that the applicant made the films or participated in the making of the films to make a point or to make a statement.  On the other hand, his participation in the films may be seen as an indication that he did not accept the religious views that underlay the prohibition.  That, however, it seems to me, is not sufficient to attract the application of the Convention.

16. It was also suggested on behalf of the applicant that whereas the enforcement of a law of general application is not, without more, persecution for a Convention reason, there was something more in the present case because of the seriousness of the penalty that might be imposed; namely, the possibility of death.  However repugnant it might be to Australians that people should be punished in such a way for engaging in conduct that in Australia may be regarded as lawful, that is not sufficient to constitute an exception to the general principle that the enforcement of a law of general application is not persecution for a Refugee Convention reason.  The applicant may have other valid grounds of complaint under international law.  But that is not the question.

17. If a particular offence against a law of general application were prosecuted for a Convention reason, that may be within the Convention.  Even if the penalty were not harsher, the fact that particular individuals were singled out for prosecution by reason of their religious beliefs or their political beliefs or for being a member of a particular social group would attract the Convention if that were the reason for the prosecution.  However, there is no suggestion in this case that any prosecution of the applicant would be for any Convention reason.  I do not consider that any error has been shown on the part of the Tribunal.  Accordingly, in my view, the application should be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             4 September 2001

Counsel for the Applicant:	Mr H Moser appeared pro bono
Counsel for the Respondent:	Mr A.A. Jenshel
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 2001
Date of Judgment:	30 July 2001